The practice and its authority: an elaboration

ABSTRACT

A ‘practical’ theory of human rights should make sense of two claims: a ‘practice claim’ – that international human rights can fruitfully be regarded as an existing social practice – and an ‘authority claim’ – that participants in the practice have reasons to adhere to its norms. I elaborate both of these claims in this paper, taking into account important developments in the empirical study of international human rights in the last decade.

KEYWORDS:

• Authority
• discourse
• effectiveness
• human rights
• mobilization
• practice
• problem-solving
• public doctrine

Acknowledgments

This paper is a revision of my opening remarks at the 10^th Braga Meetings on Ethics and Political Philosophy at the University of Minho, 13 June 2019. Thanks to João Cardoso Rosas and David Alvarez Garcia for devoting a special session of the meetings to my book and for inviting me to give this talk. Thanks also to the 25 contributors to the special session for their constructive challenges; I wish I could respond to each of them individually. Finally, thanks to David Alvarez Garcia for comments on a subsequent draft and to my colleagues Helen Milner and Alan Patten for advice about revisions.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. For a sampling see three recent collections: Cruft, Liao and Renzo 2015, Campbell and Bourne 2017, and Etinson 2018.

2. ‘This does not mean that there is no point in investigating other conceptions of human rights such as those that might be inspired by particular ideas in the history of thought; only that we ought not to assume that this would be an investigation of human rights in the sense in which they occur in contemporary public discourse’ (IHR, p. 11). A more cautious formulation would refer to ‘the public discourse of the global practice.’

3. Maritain 1949, p. 10. The phrase occurs in Maritain’s introduction to the report of a ‘committee of experts’ established by UNESCO in 1947. Valuable recent research on the committee’s survey of intellectuals documents the diversity of view at the time about the nature and basis of human rights. Goodale 2018, esp. ‘Interpretations,’ pp. 33–44. On ‘lingua franca’ as a metaphor for human rights, see Golder 2019, pp. 11–18.

4. For comprehensive critiques see Simmons and Strezhnev, 2017 and Sikkink 2017, ch. 2. For a review of some critical works in relation to empirical social science (and an excellent bibliography), see Langford 2018. On the normative implications of the ‘inequality critique’ of human rights see Song 2019.

5. It would be a fair criticism that this question is not well formed. There are many possible worlds that do not include the human rights enterprise as we have it. The question about the effectiveness of the enterprise needs to specify the relevant counterfactual. (Is it, for example, the nearest possible world that does not contain any comparable practice?) One criticism of the critics is that they tend not to state the comparison case very clearly, if at all – a point stressed by Sikkink 2017, ch. 2.

6. Posner 2014 is a partial exception; he offers a brief empirical analysis at the aggregate level of the relationship between human rights treaty ratification and compliance (ch. 4).

7. Fariss 2018. See p. 265 for a summary of results and comparison with other studies. Fariss’s findings have been questioned; see Cingranelli and Filippov 2018 and the response in Farris 2019. The data on compliance has been questioned before; see, e.g., Clark and Sikkink 2013.

8. Cp. Melenovsky 2013, pp. 605–607 and, for helpful background, Rouse 2007. On human rights as an international practice see Karp 2013.

9. In a discussion of customs in discursive normative practices, Gerald Postema observes suggestively that customs are integrated into two ‘networks’ – the ‘intermeshing anticipations of the social interaction network’ and ‘the discursive system of reasons and arguments’ (the ‘discursive network’). Postema 2012, p. 730.

10. Johan Karlsson Schaffer argues that IHR is insufficiently attentive to ‘the agency of rights-bearers’ (2017, p. 34). Without engaging that critique, I agree that what Schaffer calls ‘domestic empowerment’ is an important element of human rights practice. I believe that the view in IHR takes account of it (e.g., p. 38; see also Beitz 2013), though as I suggest in the text above, it might have been given greater nuance.

11. E.g., Simmons 2009, pp. 127–48; Risse and Sikkink 2013, pp. 276–77.

12. On the ambiguity of the idea that the justification of political principles might be ‘practice dependent’ see Valentini 2011. Owing largely to the ambiguity of this phrase I have not generally used it to describe my view.

13. IHR, p. 129. Compare Raz 2010, Macklem 2015, pp. 45–50, and Sangiovanni 2017, ch. 6.

14. Goodale 2018, pp. 39,, the responses of Mahatma Gandhi (p. 191) and Cung-Shu Lo (pp. 192–95).

15. This responds to Christian Barry and Nicholas Southwood, who write that ‘It does not seem accidental or arbitrary that the UDHR happens to contain the particular rights it does ….’ They consider that the practice is ‘crucially dependent upon a notion of human rights that is prior to and independent of their proper institutionalization’ (Barry and Southwood 2011, p. 379). This seems to me trivially true in one sense and not obviously true in another. The framers of the UDHR plainly had an idea of human rights before they began to write the Declaration. On the other hand, they did not simply adopt a historical model of human rights; indeed, they disputed whether any familiar historical model would be adequate to the aspirations of the postwar world. With respect to the list of rights contained in the UDHR, the contingency of the drafting process is striking. The list is the product of negotiations among members of the Commission on Human Rights and the General Assembly’s third committee whose outcome could not have been anticipated except in relatively general terms (Glendon 2001).

16. See, e.g., Geuss 2013 for the claim that we would do better with a moral-political language framed in other terms than rights.

17. Feinberg 1970, p. 252. Also Beitz 2013, pp. 278–79, 288–89.

18. Consider, e.g., the role of human rights in empowering local organizations working against gender violence in India and in the ‘community empowerment’ efforts of Tostan, an NGO working to reduce threats to women’s health in eight African countries. Merry 2005, ch. 7; Gillespie and Melching 2010.

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Notes on contributors

Charles R. Beitz

Charles R. Beitz is Edwards S. Sanford Professor of Politics at Princeton University, where he teaches political philosophy.